The Supreme Court in Maine in a recent ruling declared that the Humane Society of the Waterville Area was not subject to state laws governing the release of public records. Gina Turcotte had filed suit against the Humane Society claiming she had a right to inspect the society’s records relating to her missing cat. Ms. Turcotte claimed that the Humane Society had adopted out her cat and refused to disclose to her any information relating to the adoption when Ms. Turcotte demanded the return of her cat. In her suit, Ms. Turcotte claimed that because the Humane Society had contracts with area communities to collect and care for stray animals they were subject to the state’s public records law. The court rejected that argument saying that although the society does perform a governmental function, it receives the bulk of its funding from private donations, it was privately created, and its operations are under no significant government control. As such, the court determined that the Humane Society did not have to provide Ms. Turcotte with its records regarding her cat.

In this instance, the Humane Society was not forced to identify the new cat guardian, and in a previous companion case, won a lawsuit filed by Ms. Turcotte attempting to have the cat returned. However, there may be other instances where the Humane Society or other rescue organization might be forced to disclose the identity of the new owner or worse, be found liable for conversion. This case also highlights the limited protections afforded to someone whose cat or dog is rehomed by a shelter or rescue organization. The resolutions to these issues are not always simple and can depend greatly on the state in which the adoption takes place, the local rules relating to lost or abandoned animals, and the language in the rescue organization’s adoption contracts.

Most jurisdictions have periods of impoundment that can vary from three to six days where they are required by law to hold onto an animal before adopting it out or euthanizing it. This period of impoundment is designed to give the owner of the animal an opportunity to reclaim their missing pet. The owner reclaiming his or her animal would typically be required to show proof of ownership, provide proof of rabies vaccinations, and in some cases pay a fine. The problems arise when the owner comes back to claim their animal after the mandatory waiting period has ended.

In the case of Thomas v. City of Minneapolis & Sharon Keller/Underdog Rescue 2007 WL 1121465 (Minn. Ct. App.), a lost dog that was placed by Underdog Rescue after being received from local animal control was returned to its former owner because animal control failed to post the required notices. Animal control and Underdog Rescue also had to reimburse the adopter for the costs involved with the failed adoption. In comparison, in two cases, both out of Vermont that are the minority view, Morgan v. Kroupa (167 Vt. 99, 702 A.2d 630 (1997)) and Lamare v. North Country Animal League (170 Vt. 115, 743 A.2d 598 (1999)), the court extinguished the rights of the original owner in favor of the second owner. In Morgan, the owner’s dog broke away from its collar and ran away. Despite efforts to locate the dog and despite the person who found the dog also posting signs, the original owner was never reunited with his dog. A year later the original owner tracked down his dog and when the new owner refused to return the dog, the dog jumped in the back of the truck of the original owner and he drove off. The new owner sued and was awarded the dog since she had cared for it for a year and made efforts to return it to the original owner. In Lamare, only a month had passed when the original owners found their dog, but the Animal League refused to return it, demanded the owners fill out an adoption application, and ultimately declined to adopt the dog out to them in favor of other owners. Since the Animal League abided by the notice requirements for lost pets, the court held in its favor.

Woods v. KittyKind, Inc. (2005 WL 1404712, 2005 N.Y. Slip Op. 50911(U) (N.Y.Sup.Ct.)) is an unpublished New York case that elucidates how the law can favor the owner and how these issues arise in the first place. After returning from a weekend trip, Woods found that her cat had gone missing. She posted signs and contacted shelters and approximately two to three weeks later found out that her cat had been taken in by KittyKind, Inc., a rescue organization for cats. KittyKind informed Woods that her cat had been adopted and refused to disclose the name of the adopter. Woods alleged that KittyKind failed to take proper steps to locate the original owner including waiting five days, which is the local waiting period for impounded animals. The court stated that “[t]here is a distinction between allowing a shelter to make a lost animal available for adoption and extinguishing the original owner’s rights to the animal. One does not necessarily follow from the other.” The court ultimately ordered KittyKind to divulge the name, address, and phone number of the adopter so the original owner could get her cat back.

Despite it appearing as though the courts are at odds with how to treat owners when dealing with lost companion animals that are subsequently adopted out, there are some general best practices for animal owners and shelters alike.

For Owners

Even if your pet has been adopted out, you can still assert your rights provided that local statutes did not clearly extinguish them.

Take steps now to help establish the identity of your companion animal and you as its guardian. This includes getting your companion microchipped, having your animal companion wear a visible collar with ID tags, having photos taken of your animal companion, etc.

If your companion animal and you become separated from one another, remember, extra effort counts. Courts will take the effort expounded by each party into consideration to the benefit or detriment of their case.

Contact local shelters and rescues, provide your contact information, post pictures and other general information about your animal companion on Facebook, Twitter, and other online sites. Be persistent!

For Shelters and Rescues

It is important to pay close attention to local statutes that may govern how long a shelter must hold an animal before adopting it out.

You should bear in mind that just because an animal has been adopted out that it does not necessarily mean that the original owner’s rights to their companion animal have been extinguished. Courts generally are not looking to dispossess original owners of their pets.

Just like with animal companion owners, extra effort counts! It is critical that the rescue organization put forth their best efforts in trying to track down the owner. Courts will take the effort expounded by each party into consideration to the benefit or detriment of their case.

Rescue organizations may want to consider taking the extra step of including a clause in their adoption contracts stating the adopter agrees to relinquish the animal back to the rescue organization should the original owner claim the animal companion within a certain timeframe. Organizations should be aware that while it may be prudent to include such a clause, including a clause with a lengthy timeframe allowing for original owners to reclaim their animal companions may have a chilling effect on adoptions.

Shelters and rescues should always, as part of their intake procedures for new animals, check for the existence of a microchip and ID tags.

Humane societies, SPCAs, and rescue organizations should consult with a local attorney to see if their organization and adoption contracts are following “best practices”. Should a dispute arise between animal companion owners and rescue/shelter organizations or if initial conversations between the parties fail to produce the desired results for either the animal companion owner or rescue/shelter organization, parties may wish to consider animal companion mediation as an alternative to litigation.

Abigail Murray and Michael Rouvina are Michigan attorneys who focus their law practice on Animal Law and Animal Companion Mediation, as well as Business Law, Family Law, Probate/Estate Planning, and Alternative Dispute Resolution at the law firm of Murray & Rouvina, PLC in Kalamazoo, MI. You can find more information at www.zoocitylawyers.com.

As much as animal lovers may view, and may wish that others view, their animal companions as members of their families, the fact remains that pets continue to be characterized under the law primarily as property. As such, during a divorce, a court may look to award a beloved pet in the same manner as the television or grandma’s china, or in a claim against a third party for critically injuring the animal companion, a court may award an animal guardian only the assessed fair value of their companion, which may be minimal and in no way compensate for the animal guardian’s loss of companionship.

Although there has been a shift in some courts to recharacterize pets as something other than property (see, e.g., Corso v. Crawford Dog and Cat Hospital, Inc., 415 N.Y.S.2d (182 N.Y.City.Civ.Ct., 1979), holding that “a pet is not just a thing but occupies a special place somewhere in between a person and a piece of personal property”), change has been slow and inconsistent among jurisdictions. In contrast to the Corso court, other courts have declined to look beyond the traditional classification of animal companions as property, arguing that doing so effectively would require the courts to undertake the same level of responsibility for animal companions as they do for people, thereby increasing the burden on already overwhelmed courts (see Bennett v. Bennett, 655 So.2d 109 (Fla.App. 1 Dist., 1995)). Additionally, even those courts agreeing with a different characterization have struggled with its application. For example, recently a New York court applying Corso in an animal custody matter determined to utilize a “best for all concerned” standard, which would allow each animal guardian in a pet custody matter to prove why the guardian would benefit from having the pet in the guardian’s life and why the pet “has a better chance of living, prospering, loving and being loved in the care of one [guardian] as opposed to the other,” rather than a traditional property distribution analysis (Travis v. Murray, 42 Misc.3d 447 (Sup. Ct., N.Y. County, 2013). However, despite using such a standard, the court in Travis determined that the animal companion should be awarded solely to one guardian, noting that “[a]lthough regrettably a harsh and seemingly unfeeling outcome … our judicial system cannot extend to dog owners the same time and resources that parents are entitled to in child custody proceedings.”

In light of the philosophical change from a traditional property analysis in some courts to a more “best for all concerned” approach, this may leave animal guardians uncertain as to how their beloved companion will be treated by a court. In addition, with respect to companion custody matters, it still remains a zero sum game. The losing guardian, unless an alternative agreement is reached, is stripped of any right to joint custody or visitation. A potential solution, as noted in Travis, is for the parties to arrive at some form of agreement outside of the courtroom. One way for disputing parties to reach agreement may be to engage in mediation. Parties may agree to mediation without court involvement or a court may recommend or order mediation.

Mediation vs. Litigation

Mediation is a voluntary process in which a neutral third-party facilitates communication between the parties to determine if a mutually agreeable solution can be reached. The mediator may or may not be an attorney, but, regardless, does not counsel or give advice to the parties. Unlike litigation, which is adversarial in nature and results in a win/lose outcome, mediation allows the parties to arrive at a shared middle ground that is acceptable to both parties. In animal law matters, including pet custody, landlord/tenant issues, neighbor disputes and animal injury matters, mediation may be particularly useful to arrive at creative solutions that litigation does not permit.

Mediation may not be appropriate or useful in all animal law matters, as mediation depends on the cooperation of the parties. If the parties are focused solely on determining a “winner” as opposed to finding a solution that the parties find acceptable, mediation will fail. Likewise, mediation depends on having appropriate parties participate in the mediation–if a party sends a relative or some other third party to mediation in his or place, no agreement may be reached.

If, on the other hand, all involved parties are willing to mediate, the process may offer many benefits. First, litigation is typically an expensive and time consuming process. Beyond court fees, costs and time constraints, parties rarely communicate directly, which decreases the parties’ opportunity for quickly and satisfactorily resolving the issue. In contrast, mediation usually involves splitting the cost of a mediator’s hourly rate, which can vary depending on the jurisdiction, between the parties. Depending on the parties’ preferences, attorneys may or may not be involved in the mediation process. Even if attorneys are involved in the mediation, the parties are the primary communicators, which allows for more meaningful, direct, and honest communication. Also, because mediation does not involve a court docket, it can occur based on the parties’ schedules and the duration depends on the parties and may be as little as two hours.

Another benefit of mediation is that the parties control the outcome. Unlike litigation where a judge determines the outcome, in mediation, both parties determine if a resolution is to be reached and the content of any such resolution. A party cannot unilaterally resolve a conflict in mediation. Additionally, where, as in animal custody matters, the law and application thereof varies from court to court, mediation provides predictability.

Third, and potentially the most beneficial, mediation allows for more creative solutions. Whereas courts are constrained by rules and regulations, the parties in mediation are free to resolve their dispute in any way the parties agree within their power. In an animal custody dispute, for example, this would allow the parties to potentially devise a joint custody/visitation agreement. Through communication, the parties may learn that their schedules allow for shared visitation that benefits both parties. Whereas, during litigation, the parties are focused on attaining sole possession, as dictated by current law and practice, during mediation the parties may instead focus on what is in the best interests of their beloved companion, something the courts have declined to do.

Finally, although courts may decline to enforce a joint custody or visitation agreement litigated in family court, a court may enforce a provision in a mediated agreement against a party that violates such agreement. For example, if parties agree in mediation that any further disputes resulting from the mediated agreement will be submitted to a neutral arbitrator, the courts may enforce such provision.

Conclusion

Until the laws catches up to the expectations and emotional needs of animal guardians, mediation, rather than litigation, may prove the more prudent option to resolving issues. With respect to animal custody matters where both animal guardians have a vested interest in continuing their relationship with their animal companion, mediation may allow both parties continued association with their animal companion, something that is unlikely to happen if the parties try to resolve the custody matter in court. As stated by one court addressing an animal companion matter, “[l]ove is not a commodity that can be bought and sold—or decreed. It should be shared and not argued about.” Arrington v. Arrington, 613 S.W.2d 565 (Tex. Civ. App., 1981).

Abigail Murray and Michael Rouvina are Michigan attorneys who focus their law practice on Animal Law, as well as Business Law, Family Law, Probate/Estate Planning, and Alternative Dispute Resolution at the law firm of Murray & Rouvina, PLC in Kalamazoo, MI. You can find more information at www.zoocitylawyers.com.